U.S. v. Fleming
| Citation | 677 F.2d 602 |
| Decision Date | 07 June 1982 |
| Docket Number | 81-2003,81-2626 and 81-2627,Nos. 81-2002,s. 81-2002 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edward FLEMING and Joseph Rolenc, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. $10,000 IN U. S. CURRENCY and One 1980 Cadillac, Defendants, Joseph Rolenc, Claimant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Elliott Samuels, Gerald M. Werksman, Chicago, Ill., for defendants-appellants.
Thomas P. Walsh, John L. Sullivan, Frederick H. Branding, Chief, Civ. Div., Asst. U. S. Attys., Dan K. Webb, U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and POSNER, Circuit Judge.
Edward Fleming and Joseph Rolenc were tried jointly on federal drug charges. After a bench trial in which most of the evidence introduced was stipulated testimony from an earlier suppression hearing, Fleming was convicted of possession of 227 grams of a mixture containing cocaine, 21 U.S.C. § 841(a)(1); and Rolenc was convicted of attempted possession of the same mixture with intent to distribute, 21 U.S.C. § 846. Fleming was sentenced to five years' probation on condition that he serve six months in a work-release program. Rolenc was sentenced to three years' probation, conditioned on four months' service in a work-release program.
Following the criminal convictions, the government instituted civil forfeiture proceedings against property seized from Rolenc when he was arrested for the drug offense: $10,000 in cash (forfeitable under 21 U.S.C. § 881(a)(6)) and Rolenc's 1980 Cadillac (covered by § 881(a)(4)). By agreement the case was tried on the record generated in the criminal suit, and Judge Shadur found in favor of the government on both forfeiture claims.
These consolidated appeals raise the following issues which we deal with seriatim:
(1) Did the law enforcement officers have probable cause to make warrantless arrests of Edward Fleming and Joseph Rolenc on August 8, 1980?
(2) Should the contents of paper bags seized from both defendants-one containing $10,000, the other containing the cocaine mixture-have been suppressed because the officers opened them without first obtaining a search warrant?
(3) Was the warrantless entry into Fleming's home and the subsequent seizure of cocaine therein a violation of Fleming's Fourth Amendment rights?
(4) Was the evidence sufficient to prove that Rolenc attempted to possess cocaine for further distribution?
(5) Did the government meet its (minimal) burden of proof in the forfeiture cases?
Edward Fleming lived at 2122 N. Kenmore Avenue in Chicago; he also used his home as headquarters for an art reproduction and antique business. In April of 1980 the Chicago police department and the Drug Enforcement Administration began an elaborate surveillance of Fleming and his acquaintances. Law enforcement officers obtained Fleming's long-distance telephone records, installed pen registers on his three telephones, and posted men to watch the comings and goings at Fleming's house. Some of the information gathered in this investigation has no relevance to the existence vel non of probable cause to arrest Rolenc and Fleming on August 8, 1980. 1 But other information-facts relayed to police officer Bobko and observations made by him during the continuous seventy-day period he spent watching Fleming's house-is highly relevant. Bobko made the arrests on August 8, and Fleming and Rolenc argue that because Bobko's suspicions at that time do not rise to the level of probable cause, the arrests and their consequences were tainted.
What did Bobko in fact know? He had information that made it very likely that Fleming dealt in cocaine. In particular, Bobko had seen Joe Pepitone visit Fleming's residence for fifteen minutes on the night of June 25, 1980; and he knew that Pepitone had been arrested two and a half hours later, in the same car he had driven to Fleming's house, for possession of cocaine. Bobko knew that Fleming had come out of his residence on June 30, 1980, met Jay Emerich at a nearby corner, and given Emerich a small bag. Reliable informants had told Bobko's superior officer that Emerich was a known user and dealer of cocaine, and the information had been relayed to Bobko. Finally Bobko knew that an undercover DEA agent had succeeded in buying cocaine on July 22, 1980, from William Leverance. Leverance had set up the transaction for 9:30 p. m., saying that he had to pick up the cocaine from a source "up north"; 2 at 8:45 Bobko saw Leverance come to Fleming's house, give Fleming a small plastic bag, and wait ten minutes for Fleming to return it to him. 3
Bobko also knew, based on his extensive observations of Fleming's house and environs, that the house was probably Fleming's base of operations. The people who came and went during Bobko's prolonged surveillance fell into three categories: (a) workmen engaged in the remodeling Fleming was having done; (b) customers of Fleming's art business, who approached the house briskly, spent a short time inside, and emerged with packages in new cardboard boxes; and (c) people who parked far from the residence, seemed to reconnoiter carefully before approaching, and on leaving tried to conceal small packages, not at all similar to the cardboard parcels of the art customers.
Bobko knew much less about Joseph Rolenc. He had seen him at Fleming's twice and knew that Rolenc worked in the Cook County Sheriff's office. The other investigators knew only slightly more than Bobko: Fleming had called Rolenc twice (on June 5 and August 7, 1980); Rolenc was a bailiff in the Sheriff's Department; and he had been placed under surveillance (we do not know with what results) in early August. One officer testified that Rolenc drove very fast to Fleming's house on August 8, but Rolenc's haste was not apparent to Bobko. 4
Coming to the events immediately surrounding the arrests, Bobko saw Rolenc drive south on Kenmore on the afternoon of August 8, park his car, and get out carrying a brown paper bag folded into a rectangular parcel and secured with rubber bands. Rolenc walked to Fleming's front porch, while Bobko watched from the sidewalk. From his vantage point Bobko saw Fleming inside the house spread the venetian blinds and look out at Rolenc. Bobko was not sure whether the door opened before or after Rolenc rang the doorbell, 5 but once the door was ajar Bobko saw Fleming with a small paper bag in his hand. Bobko had raced up the steps behind Rolenc, and at that moment he grabbed Rolenc and arrested him. He also put his foot in the doorway to prevent Fleming from shutting the door. Two other officers who had been assigned to the stake-out went in through the door and arrested Fleming. 6
In the scuffle Rolenc's bag was knocked from his hand. Officer Bobko picked it up immediately, but opened it only after Rolenc had been taken to the street and handcuffed. The bag contained $10,000. Fleming's bag had also fallen to the floor just inside the doorway; and as one of the officers went in to make the arrest he picked up the bag, opened it, and saw what he thought was cocaine. A field test done by a colleague confirmed his guess. 7
The district court correctly relied on three factors to find that Bobko had probable cause to arrest Fleming and Rolenc: (1) Bobko's knowledge of Fleming's earlier cocaine transactions-both the specific incidents involving Pepitone, Emerich, and Leverance, and the pattern observed when people came to Fleming's house; (2) Bobko's observation that Rolenc and Fleming were each carrying paper bags, not of the type associated with Fleming's art business; and (3) the indications Bobko had that Rolenc's arrival was anticipated by Fleming. These factors are especially telling as to Fleming, but this is not a case of Rolenc being tarred with Fleming's brush. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, are not apposite. The small rectangular object Rolenc was carrying, the speed with which he was met at the door, and Fleming's appearance also with a small bag all suggested to Bobko that a drug transaction-necessarily involving a buyer and a seller-was about to take place. Fleming and Rolenc try to suggest that Bobko was relying on a drug courier profile as did the agents in Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (Br. 35, 50), but that is inconsistent with the extent and particularity of Bobko's personal observations. They also argue that Rolenc might have been simply an art customer (Br. 35-36). Probable cause does not, however, require that every inference in the chain be susceptible only of nefarious explanations. It is sufficient if Bobko had "enough evidence to lead a reasonably prudent person to believe that (Fleming and Rolenc) had committed or (were) committing a criminal act." United States v. Gaston, 620 F.2d 635, 638 (7th Cir. 1980). The Gaston standard is satisfied in this case.
In the excitement of the arrests, both Rolenc and Fleming dropped the paper bags they had been carrying. Bobko picked up Rolenc's bag and another officer picked up Fleming's. Fleming's bag was opened in his presence and immediately; Rolenc's bag was not opened for about five minutes, until after Rolenc had been disarmed, taken to the street, and handcuffed. Bobko and Rolenc were standing together when Rolenc's bag was opened.
Rolenc and Fleming argue that even if their arrests were valid and the police could seize the paper bags, "the searches of (the) closed paper bags, after they had been recovered from the defendants and were securely in police custody, were illegal in the absence of a...
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